vol. 13, no. 10

American -

Civil Liberties

Union-News

Free Press

Free Speech

Free Assemblage (c)

"Eternal vigilance is the price of liberty."

Vol. XIII

SAN FRANCISCO, OCTOBER, 1948

No. 10

| Annual Meeting

/What Should Be the Union's Policy Concern-

"~ing Present Attacks on Alleged

Subversives?'

The annual membership meeting of the American Civil Liberties Union of Northern California

will be held at the California Club, 1750 Clay St., San Francisco, on Friday evening, October 15, at

8 o'clock. A panel composed of Dr. Lynn T. White, Jdr., President of Mills College; Charles E.

Corker, Asst. Prof. of Law at Stanford University; Attorney Clarence E. Rust of Oakland, and

Ernest Besig, director of the local branch of the Unjon, will discuss "What Should Be the Union's

Policy Concerning Present Attacks on Alleged #

Subversives?" Senator Jack B. Tenney was invited Howser's Opinion Supporting

to speak but failed to acknowledge the invitation.

Bishop Parsons, Chairman

Rt. Rev. Edward L. Parsons, national vice-

chairman of the Union, and chairman of the

local Executive Committee, will preside. The

director will give a brief report on the state of

the Union.

The subject for the meeting was selected be-

- cause issues growing out of the current "red

"hunt" not only constitute the chief current civil

liberties problem, but have taken an increasing

amount of the Union's time. Under considera-

tion by the panel will be such matters as the

activities of the Thomas and Tenney Commit-

tees, the federal loyalty check, the Smith sedi-

tion law indictments, the wave of deportation

proceedings against alleged Communists, denial

of visas to foreigners because of their political

associations, the Taft-Hartley Act's provision re-

quiring the filing of non-Communist affidavits,

etc. Members of the panel will each speak for

ten minutes on different aspects of the problem.

Thereafter, the members of the panel will be

permitted a short period in which to ask each

other questions. and, finally, the audience will

be allowed to ask questions. It is honed that the

program will help persons who believe in civil

liberties and the democratic processes to decide

what their positions should be on the foregoing

matters.

The Speakers

Dr. Lynn T. White. Jr., has been President of

Mills College since 1943. Before that he was a

history professor at Stanford and Princeton Uni-

versities for ten years. He holds a doctorate

from Harvard University.

Charles E. Corker has been an Assistant Pro-

fessor of Law at Stanford Universitv since 1946.

Attorney Clarence E. Rust of Oakland has

been a member of the Union's local Executive

Committee for many years. He has also served

as one of the Union's attorneys.

Ernest Besig has been director of the local

_ branch of the Union since June 23, 1935.

14th Anniversary

The meeting will mark the 14th anniversary

of the local branch of the Union, which was

founded September 14, 1934.

The Union's Executive Committee sincerely #

hopes that the meeting will be well supported'

and that the membership will make it an occa-

sion to invite their friends. There is no admis-

sion charge. The meeting is open to all who are

interested.

HOW TO GET 'FREE SPEECH"

Dr. Alexander M. Meiklejohn's new book,

"Free Speech and Its Relation to Self-Gov-

ernment," is now available at the A.C.L.U.

office, 461 Market St., San Francisco 5. To

get your copy, send a check, money order or

cash' in the amount of $2 to the Union and

the book will be sent to you by return mail.

Guard Segregation Protested

The American Civil Liberties Union of North-

ern California last month took issue with the

opinion of Attorney General Fred N. Howser,

released on September 4, that elimination of ra-

cial segregation from the National Guard would

result in the loss of federal funds for the Guard. |

"Tf that be true," asked Ernest Besig, local di-

rector of the Union, ``why has New Jersey con-

tinued to receive financial assistance from the

federal government for its non-segregated

Guard?"

In a letter urging the Attorney General to

reconsider his opinion, the Union pointed out

that more than a year ago, the People of the

State of New Jersey eliminated racial segrega-

tion from their National Guard by a constitu-

tional amendment providing that "No person

shall be . . . segregated in the militia . .. on

account of religious principles, race, color, an-

cestry or national origin" "New Jersey is abid-

ing by its State Constitution," said Mr. Besig,

"yet it continues to receive the same federal

support received by the segregated Guards of

other states. If New Jersey may adopt a policy

of non-segregation in its Guard without forfeit-

ing federal sunvort, I am at a loss to under-

stand why California may not do likewise with-

out losing federal assistance."

The Union also supported its contentions with

a letter it received from Secretary of the Army,

Kenneth C. Royall, under date of September 27,

1947, answering the Union's query concerning

the discharge of Beckford Dominguez of Loomis

from the Guard because of his color. At that

time, Secretary Royall informed the Union, "You

are correct in your contention that this is a

matter for each State to determine for itself.

The Department of the Army has jurisdiction

only when and if the State unit is called to fed-

eral duty, as in times of national emergency."

In the meantime, President Truman appointed

Charles H. Fahy, former Solicitor General of the

United States, as chairman of a committee to

study "equality of treatment and opportunity in

the armed forces."

`Nisei Pestal Employee Denied

Credit for Pre-Evacuation Service

The ACLU learned last month that a USS.

postal employee with permanent civil service

rating was unceremoniously fired from his job

in San Francisco when all persons of Japanese

ancestry were evacuated from the Pacific Coast

in 1942. On his release from the camp and after

service in the U.S. Army, the Nisei secured a

war-time job with the Post Office in the East.

Subsequently, he again secured permanent P.O.

status and is once again working in San Fran-

cisco. Thus far, however, the Post Office De-

partment has refused to include his pre-war

service in determining his present employment

rating.

Auicide May Bring Change In

4

Alien Detention Quarters

The Immigration and Naturalization Service

announced last month that it is negotiating for

the lease of the mile-square wartime Navy sta-

tion next to the Tanforan race track in San

Bruno as a detention area. The 12th Naval Dis-

trict has already agreed to turn over to the

Service the unused property and buildings which

it is holding under a lease that has two years

yet to run.

The announcement by I. F. Wixon, District

Director, came after the suicide of Leong Bick.

Ha on September 21. She had been waiting in

the Immigration Service detention quarters in

the Appraisers Building in San Francisco ever

since June 30 for a hearing on her application

to enter the country to join her alleged husband,

a veteran of the last war. It was the second

suicide there in the past few months. In addi-

tion, two Chinese women recently failed in sui-

cide attempts. , on

hundred women went on a brief hunger strike.

Ernest Besig, local director of the Union, on

September 17 had urged abandonment of the

present detention quarters in testimony before

a U.S. Senate sub-committee investigating the

Immigration and Naturalization Service. He de-

clared that the quarters were unfit because the - |

detainees were unable to enjoy fresh air, sun-

shine and outdoor recreation. _

Following the last suicide, the Union at once

urged Watson Miller, U.S. Commissioner of Im-

migration, to close the detention quarters `ex-

cept for persons who are detained less than

thirty days." A similar request was dispatched

to Senator Chapman Revercomb, Chairman of

the Senate sub-committee on immigration. The

Union also sought unsuccessfully to have John

A. Loftus, staff assistant of the committee then

in Los Angeles, make an on-the-spot investiga-

tion into the circumstances surrounding the sui- |

cide. Mr. Loftus said his schedule would not

allow a return to San Francisco, but he would

inquire into the matter from Los Angeles.

Another solution for the problem, the Union

declared, is for the Government to change its _

outmoded procedures. An alien's right to enter

the country should be finally determined admin-

istratively before he boards a ship to come here.

As it stands today, an American consul in a

foreign land decides an alien can come here and

issues a visa, but the Immigration Service de-

termines the question anew when the alien ar-

rives in this country. The functions of the two |

agencies should be joined, the Union declared.

Some aliens have been detained here for well

over a year before their cases were finally de-

termined.

FACTS ABOUT THE MEETING

Time: Friday evening, Oct. 15, at 8 o'clock.

Place: California Club, 1750 Clay St., San

Francisco (between Van Ness Ave. and

Polk Street).

Subject: "What Should Be the Union's Pol-

icy Concerning Present Attacks on Al-

leged Subversives?" Also, brief report

on the state of the Union.

Chairman: Rt. Rev. Edward L. Parsons.

Speakers:

Dr. Lynn T. White, Jr.

Prof. Charles E. Corker.

Attorney Clarence E. Rust.

Ernest Besig.

No Admission Charge (R)

Public Invited

Following the last suicide, one _ :

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

Baldwin Sails for Europe

For Occupation Area Study

Bound for Europe aboard the "Queen Mary,"

Roger N. Baldwin, director of the ACLU, sailed

September 14th to join Arthur Garfield Hays,

Union general counsel, now at Frankfurt. With

Norman Cousins, editor of the "Saturday Re-

view of Literature," they will form the three-

man panel invited by General Lucius Clay, Com-

mander of U.S. armed forces there, to survey

and recommend provisions for civil rights in the

American Occupied Zones of Germany and Aus-

tria, on behalf of the ACLU.

- Baldwin, in a statement on the objectives of

the trip, said he expected also to cover the Brit-

ish and French zones, and would attempt to get

into the Russian zone. He was refused permis-

sion last year to visit Northern Korea under

Russian control. He said that he planned to con-

fer not only with Occupation officials in regard

to the program of democratic liberties, but also

with German and Austrian officials and leaders

of democratic agencies.

In his statement he said: "One of the best

antidotes to Communism is civil liberties. Their

promotion in occupied areas is one of the tests

of our democratic goals abroad. The present

moment may seem unfavorable for such an ef-

fort, but this is a long range task. The expe-

rience of the Civil Liberties Union should be

useful both to the Occupation authorities and to.

German and Austrian leaders in extending poli-

cies to that end which are not merely American

but universal. Anti-Communism, alone, is futile."

Rice Urges N. Y. Rabbis Drop

Action Against Dickens Film

In a letter characterizing their action as inim-

ical to the preservation of free speech, Elmer

Rice, chairman of the Union's National Council

on Freedom from Censorship, went on record

September 15th deploring the reported effort of

the New York Board of Rabbis to prevent the

licensing of a British film based on Charles

Dickens' `Oliver Twist." The letter was ad-

dressed to Dr. Theodore N. Lewis, president of

the Rabbis' group.

_ ~The Rice letter, noting "that there is growing

up in this country a rather alarming tendency

on the part of minority groups to demand the

suppression of anything that might conceivably

be detrimental to their own interests," contin-

ued as follows:

"T am well aware that the action taken by you

and your organization is motivated by a laudable

desire to check the growth of anti-Semitism in

this country. With this objective, the Union is

wholly in sympathy. In fact, a large part of its

work is directed toward the removal of discrim-

ination and other disabilities based on racial or

religious grounds. Situations sometimes arise,

however, in which a minority group, in its ef-

forts to protect or further its own special inter-

ests, advocates measures that run counter to

the broad spirit of the Bill of Rights and those

basic civil liberties with which every American

citizen, regardless of race, creed or color, is vi-

tally concerned."

Executive Committee |

"American Givil Liberties Union

of Northern California

Sara Bard Field

Honorary Member

Rt. Rev. Edw. L. Parsons

Chairman

Dr. Alexander Meiklejohn

Helen Salz

Vice-Chairman

Joseph S. Thompson

Secretary-Treasurer

Ernest Besig

Director

Philip Adams

John, H. Brill

Prof. James R. Caldwell

H. C. Carrasco

Wayne M. Collins

Rev. Oscar F.. Green

Margaret C. Hayes

Ruth Kingman

Ralph N. Kleps

Seaton W. Manning

Mrs. Bruce Porter

Clarence M. Rust

Rabbi Irving F. Reichert

Prof. Laurence Sears

Dr. Howard Thurman

Kathleen Drew Tolman

ACLU Panel Urges Bil of

Rights for Occupied Lands

The American Civil Liberties Union last month

sent to Secretary of State George C. Marshall

and Secretary of the Army Kenneth Royall a

memorandum setting forth a suggested Bill of

Rights to be considered in the administration of

occupied countries.

The proposed Bill, offered "in the effort to

create a thoroughly democratic foundation for

the future life of independent peoples as secur-

ity against subversion by. either reaction or

Communism," was drawn up by fourteen ex-

-perts on the occupied areas called into consulta-

tion by the ACLU. All fourteen signers of the

document have served in one or more of the

four countries currently occupied by the United

States.

"We make our suggestions not in a spirit of

general criticism," the signers emphasized. "For

obvious reasons, in that part of the frontier be-

tween the Soviet world and the democratic world

where the U.S. is in control, our democracy

should be strong and convincing. In our occu-

pied territory in Germany and Austria, Japan

and Korea, the civil liberties which constitute

the essential foundation of democracy, while

strong, are in some respects, in our judgment, (c)

unnecessarily curtailed."

In an accompanying letter to the two secre-

taries, ACLU officials John Haynes Holmes,

Chairman: Arthur Garfield Hays, General Coun-

sel, and Roger N. Baldwin, Director, said: `We

are not unmindful of the great difficulties and

the equally great accomplishments of the Occu-

pation authorities in all four occupied countries,

but we venture the suggestion that the time has

come, three years after the close of the war,

when occupation policies could be made more

uniform in respect to the extension of demo-

cratic liberties. These we recognize are the re-

sponsibility of the Departments of State and the

Army."

The suggested Bill of Rights, containing 14

points, deals with Basic Civil Rights, Freedom of

Opinion and Communications, Political and So-

cial Rights, Democracy and Military Government

and Economic Factors.

In general, the Bill proposed that nationals of

each occupied country should be given a defi-

nite set of enforceable rights including freedom

`of speech, relaxation of censorship, increased fa-

cilities for travel both within and outside occu-

pied areas, and equal rights for all political par-

ties providing no party promotes overt violence.

ACLU Enters Immigration

Case of 69 Balt Refuaees

The American Civil Liberties Union last month

sent a letter to the Commissioner of Immigra-

tion urging him to grant political asylum to 69

Esthonians, 2 Finns, and a Pole who had ille-

gally entered the U.S. at Wilmington, North

Carolina. The 72 aliens, now being held at Ellis

Island, are subject to deportation since they en-

tered the country without proper papers. The

refugees made their way to the United States

from Soviet-occupied territory in a schooner.

The Union urged that the Commissioner release

the refugees as a group on reasonable bail dur-

ing the time it will take for them to secure ship-

ment to some other country or until legislation

is introduced in their behalf.

As a further move to aid the Ellis Island

prisoners, the Union informed the National Lu-

theran Council, which sent'a member to meet

the refugees, that the Union would provide any

legal assistance which might be necessary to

protect their civil rights.

Political Use of Sound Trucks

Without Permits Upheld In NY

The right of political candidates to use sound

trucks in New York City without police permits

was upheld by Magistrate Peter Abeles last

month when he dismissed a summons against

Bernard Walpin, who was charged with using

two loud speakers on his automobile last June.

Walpin had been supported in his test case of

the validity of the city law by the American

Civil Liberties Union.

Magistrate Abeles cited an opinion handed

down on June 7 by Justice William O. Douglas

of the United States Supreme Court which held

that a similar ordinance in Lockport, N. x, was

unconstitutional.

Walpin, Liberal Party candidate for the As-

sembly, called Abeles' decision `another victory

in the fight to perpetuate civil liberties in the

United States" but added that he may force an-

other test case on a new city ordinance requir-

ing a $5.00: permit for using a loud speaker. |

- picketing.

Union Condemns Viclent

Picketing In Oil Strike

The use of force by CIO pickets to bar AFL

oil workers from struck plants in Richmond was

condemned by the American Civil Liberties

Union last month as a plain abuse of the right of |

"No claims of the right to picket

justify the use of force to prevent access to

plants on strike by those who are willing to

cross picket lines," said the Union. Police ef-

forts to keep access to plants open should be

supported,. not resisted, by responsible leaders.

Such action by strikers as the throwing of

stones and clods, the erection of barricades in

the streets to prevent access to plants, and in-

terference with newspaper photographers taking

pictures cannot be justified. Instructions to

strikers to "Wear your old clothes," coupled

with declarations that "It will run up a nice

dental bill to cross the picket line tomorrow,"

is not an exercise of free speech but a direct

incitement to violence that bespeaks irrespon-

sible leadership.

The American Civil Liberties Union has al-

ways supoprted the right to picket at any time,

at any place, for any purpose. Picketing, as the

courts have held, is a form of free speech and

assembly and is supported on that principle. The

only limitations by public authorities on picket-

ing supported by the Union are those to keep

traffic open for pedestrians and vehicles, to in-

sure access to places picketed, to prevent the

use of fraudulent signs, and to maintain order.

The Union has supported mass esos where

these conditions are met.

Letter To Clark Protests Ban

On 9 Canadian US Members

Roger N. Baldwin, director of the American

Civil Liberties Union, and Edward J. Ennis,

chairman of the Alien Civil Rights Committee,

last month again protested against the govern-_

`Inent's use of the immigration laws to prevent -

attendance by foreign delegates at HBgtianonn,

conferences in the U.S.

In a letter to Attorney General Tom Clark, -

Baldwin and Ennis called attention to the action

of the Immigration Service in excluding nine

delegates from Canada to the international con-

vention of the United Electrical, Radio and Ma-

chine Workers, CIO, as the most recent act in a

series which threatens the principle of freedom

of movement.

"This latest case prompts us to suggest once

more that regulations should be established by

your office which will permit temporary access

to bona fide delegates to official international

gatherings under proper restrictions," the ACLU

officials wrote.

They suggested that a conference between

representatives of the Department of Justice, the

State Department and the ACLU be arranged

in an attempt to establish satisfactory rules cov-

ering exclusion of alleged undesirable aliens.

New York State Schools

Now Subject To Anti-Bias Law

Discrimination in the selection of students by

colleges and universities in New York State was

under legal ban beginning September 15. The

New York fair educational practices law passed

last March is the first of its kind in the coun-

try. The law had the strong support of the

American Civil Liberties Union whose Aca-

demic Freedom Committee drafted many of the

provisions of the legislation.

The law prohibits all non-religious or non-de-

nominational schools from discriminating against

would-be students on the basis of:race, creed,

color or national origin. Sectarian schools, how-

ever, may still select applicants on religious

grounds. .

The new law follows the pattern of the state's

fair employment practice statute by providing

for investigation, efforts at persuasion, hearings

and if necessary court enforcement of Board of

Regent findings directing the offending institu+

tion to end the practices.

The law will be administered by the Educa-

tion Commissioner and the Board of Regents.

Affected will be 97 non-sectarian and 29 secta-

rian institutions of higher learning.

Pardons Urged for Trotskyites

Convicted Under Smith Act |

The American Civil Liberties Union has urged

President Truman to favor a petition now pend-

ing before him to pardon eighteen members of

the Socialist Workers Party who were convicted

in 1941 under the "Smith Act" of conspiracy to

create insubordination in the armed forces and

to forcibly overthrow the government.

In a letter signed by John Haynes Holmes,

chairman, Robert N. Baldwin and Arthur Gar- (c)

field Hays, the ACLU argued that the Smith

_ Act on its face violates freedom of speech and

press, and quoted Prof. Zechariah Chaffee, Jr.,

of the Harvard Law School, one of the fore-

most authorities on free speech in the United

States.

"This statute," Chafee said, "contains the

most drastic restrictions on freedom of speech

ever enacted in the United States during peace.

The ... Act brings into our federal criminal law

the European principle that a man is known by

the company he keeps and that guilt is not per-

sonal."

Pointing out that although the convictions

were upheld by the Circuit Court of Appeals in

St. Louis and that the Supreme Court refused to

review the case, the letter made clear that

neither court ever disputed the fact that any-

thing other than opinions and beliefs were in-

volved and that no overt acts were committed.

The ACLU officials held that since the peti-

tioners have all served their sentences no pur-

pose would be served by denying them executive

clemency.

# Attempt To Force Statement

From Tokyo Rose Protested

The American Civil Liberties Union of North-

ern California late last month wired U.S. Attor-

ney General Tom C. Clark to protest "the arro-

gant conduct of the FBI and your special assist-

ants in removing Iva Toguri D'Aquino (Tokyo

Rose) from the San Francisco county jail with-

out a court order and attempting to secure a

statement from her against her own and her

~ attorney's wishes."

Mrs. D'Aquino was removed from jail Satur-

day afternoon, September 25, over the protests

of her attorney, Wayne M. Collins, with whom

she was in conference following a court appear-

ance on a treason complaint. She was taken to

the FBI offices in San Francisco for interroga-

tion by FBI agents. Mr. Collins was not permit-

ted to be present with his client when the agents

sought to question her. On the previous advice

of counsel, however, she refused to answer the

questions that were propounded by two agents.

"The serious nature of the pending charges,"

said the Union's telegram, "demand the most

scrupulous regard for Mrs. D'Aquino's constitu-

tional rights." The Attorney General was asked

to admonish his representatives "against any

further infractions of the woman's rights."

Under the Federal Constitution, no person can

be compelled to testify against himself. Mr. Col-

lins, an ACLU attorney, is handling the case as

a private matter.

- Commissioner Spaulding Backs

Reinstatement of Thompson

State Education Commissioner Francis T.

Spaulding last month refused to grant a rehear-

ing in the case of Dr. Francis J. Thompson, who

was reinstated as a City College of New York

teacher last year following dismissal of charges

that he was a Communist.

Spaulding's decision closely followed the argu-

ment advanced by the Committee on Academic

Freedom of the American Civil Liberties Union

in a letter to the Commissioner last July.

The Committee said that the Board of Edu-

cation's proposal to dismi0x00A7s all teachers who

_ were either Communists or Communist sympa-

thizers or "fellow: travellers" was both "un-

American and anti-American."

"It is this proposal which concerns us deep-

ly," the Committee said, "since it is a drastic

and unwarranted departure and deviation from

traditional American principles."

Acting Education Commissioner Lewis A. Wil-

son last January ordered the Board of Higher

Education to reinstate, with back pay, Dr.

Thompson, who was dismissed from his teach-

ing post after board hearings.

"The Board of Education proposal advances

a philosophy that is completely at odds with the

decision rendered by . . . Wilson," the letter

said, "in which it was held that mere: member-

ship in the Communist party in and of itself

was not a ground for dismissal until such time

as the Legislature outlawed this party. The

Committee on Academic Freedom is wholly in

accord with this view."

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

Statement of Position of the Civil Liberties

Union On the Communist Sedition Case

1. The indictment by a grand jury in New

York on July 20, 1948, of twelve Communist

leaders for unlawful conspiracy under the Smith

Sedition Act of 1940 raises the questions of (1)

the constitutionality of the act by prosecuting

citizens solely for their opinions and beliefs; and

(2) whether Communist propaganda in itself

constitutes a "clear and present danger' to the

overthrow of the government by violence.

2. The indictment charges only opinions, be-

liefs, and association. It would make criminal

the organization of the Communist Party as a

group of persons who "teach and advocate the

overthrow and destruction of the Government

of the United States by force and violence." No

overt acts are alleged. A conviction would wholly

outlaw the Communist Party as an unlawful con-

spiracy to accomplish the overthrow of the Gov-

ernment.

3. The section of the 1940 law under which

the indictment is brought deals only with opin-

ions and beliefs. It reads:

"(a) It shall be unlawful for any person-

(1) to knowingly or willfully advocate, abet,

advise, or teach the duty, necessity, desirability,

or propriety of overthrowing or destroying any

government in the United States by force or

violence, or by the assassination of any officer

of any such government;

(2) with the intent to cause the overthrow or

destruction of any government in the United

States, to print, publish, edit, issue, circulate,

Sell, distribute, or publicly display any written

or printed matter advocating advising, or teach-

ing the duty, necessity, desirability, or propriety

of overthrowing or destroying .any government

in the United States by force or violence;

(3) to organize or help to organize any so-

ciety, group, or assembly of persons who teach,

advocate, or encourage the overthrow or de-

struction of any government in the United

States by force or violence; or to be or become

a member of, or affiliate with, any such society,

group, or assembly of persons, knowing the pur-

pose thereof."

4. The ACLU is opposed to all prosecutions

for opinion or belief whatever their character in

the absence of overt acts or of the "clear and

present danger" of them. It has consistently

opposed this section of the Smith Act which

appears on its face to be unconstitutional as

penalizing mere speech and publication in viola-

tion of the First Amendment.

5. The law has been condemned by weighty

legal authorities. Professor Zechariah Chaffee

Jr. of Harvard Law School, a leading authority

on the subject, says in his "Free Speech in the

United States":

"This statute contains the most drastic re-

strictions on freedom of speech ever enacted

in the United States during peace. The...

Act brings into our federal criminal law the

European principle that a man is known by

the company he keeps and that guilt is not

personal."

6. The Smith Act has been involved only

twice. In 1941, 29 members of the Socialist

Workers' Party, followers of Leon Trotsky,

were indicted by the federal government in Min-

neapolis on charges of advocating the forcible

overthrow of the Government and urging in-

subordination in the armed forces. But that in-

dictment charged in contrast with the present

case that the defendants sought joint action to

"bring about the overthrow by force of the Gov-

ernment:of the United States" and "armed revo-

lution." The government also charged the or-

ganization of a military unit, a "Unit Defense

Corps," to be used ultimately to overthrow the

government.

The trial jury did not sustain any of these

overt acts. It convicted 18 of the 29 defendants

for mere advocacy of the overthrow of the Gov-

ernment and of insubordination in the armed

forces. The convictions were affirmed by the

Circuit Court of Appeals in St. Louis, and the

United States Supreme Court three times re-

fused appeals to review.

It is of course a matter of speculation as to

why the Court refused review of a case raising

squarely the constitutionality of a federal law

penalizing mere speech. The reason may lie in

the war atmosphere of the time especially since

the case dealt with insubordination in the armed

forces as well as the advocacy of the forcible

overthrow of the government.

The second case under the Smith Act arose

in 1942 and 1943 when the government indicted

in the District of Columbia some 30-odd alleged

fascists and pro-Nazis from all over the coun-

try, charging conspiracy to cause insubordina-

tion in the armed forces before and during the

war. The case was never concluded, as the trial

judge died after the trial had been under way

about six months. The prosecution was eventu-

ally dismissed in 1945 by the courts because of

failure of the Department of Justice to bring it

again to trial.

The ACLU assisted the Socialist Workers': |

Party defendants on appeal by filing briefs. In

the D.C. sedition trial the Union condemned re-

sort to the Smith Act, but withheld any possible

intervention until appeal.

7. It is now argued by some that the Com-

munist movement is in itself a "clear and pres-

ent danger' to our Government and that an in-

dictment which seeks to make it criminal is

therefore justified. Of course at the trial it is

possible that the government may prove facts

which justify the application of the clear and

present danger test. We think that if this is

what the government intends to do it should

have so alleged in the indictment. Judging from -

the attitude of the government in earlier cases,

we doubt whether any attempt will be made to

apply the clear and present danger test. It is

evident that the government has no case against

the Communists other than their traditional be-

liefs. If it had, they would have been indicted,

let us say, for espionage or as unregistered for- -

eign agents.

8. The ACLU, acting independently, will file

a brief as a friend of the Court at the end of

the trial, and in the event of conviction, in the

Appellate courts, urging (1) the unconstitution-

ality of the Smith Act as a violation of freedom

or speech, and the right of assembly; and on the ~

ground that it establishes the principle of guilt

by association; (2) that the indictment on its

face seeks to penalize mere advocacy without the

showing of a single illegal overt act; and that |

it is defective on the further ground that an

essential part of any indictment for speech or

publication, should be the allegation of facts of

a clear and present danger.

9. The ACLU does not believe that any doc-

trines should be penalized unless they are asso-

ciated with overt acts or the clear and present

danger of them. Outlawry of the Communist

Party which this prosecution, if successful, would

accomplish is bad public policy. Communists

would be driven underground where they would

`be more difficult to combat. Furthermore,the ~-

precedent established might be applicable to-

other unpopular groups. As Prof. Chaffee has

stated, "those who blithely accept. this clause of

the Alien Registration Act (relating to advoc-

acy of force and violence) because of hatred for

Communists would be wise to remember that its

scope is not limited to the Communist Party by

any means."

ARTHUR GARFIELD HAYS,

OSMOND K. FRAENKEL,

RAYMOND L. WISE,

Counsel.

Union Demands Immediate

Hearing for Dr. Condon

An immediate hearing to enable Dr. Edward

U. Condon to clear his name before the House

Committee on Un-American Activities was asked

of its chairman, J. Parnell Thomas, in a letter

signed Saturday, September 18, by Dr. John

Haynes Holmes, chairman of the Board of the

ACLU.

Referring to a committee statement of the

previous day which reiterated earlier charges of

alleged "disloyal" relationships of Dr. Condon,

the Holmes letter stressed that the Committee

had steadfastly refused to grant the accused a

hearing. oe

"We are not concerned with the merits of the

charges," Dr. Holmes said, "but, in the public

interest, we are concerned that one whose name

has been blackened by a governmental body on

all principles of fair play should be afforded a

forum for reply."

The Committee's claim that President Truman

is withholding vital evidence against Dr. Condon

does not constitute a proper basis for barring a

hearing now, the letter pointed out. Dr, Holmes

emphasized that the Committeetshould substan-

tiate its charges now. If it is not able to, the

charges should never have been made in the

first place. :

"Tf to sustain the charges, the alleged FBI

letter is necessary, then any statement relating

to Dr. Condon's loyalty was premature," the

letter specified, adding: "It seems to us that

your Committee recently has held open hearings

on far less material in your files than you ap-

parently have on Dr. Condon.

"May we therefore urge you to provide Dr.

Edward U. Condon at once with a hearing at

which every fair opportunity will be given to

sustain or refute.charges made against him."

Page 4

- AMERICAN CIVIL LIBERTIES UNION-NEWS

e

oo

American Civil Liberties Union-News 4

Published monthly at 461 Market St., San Francisco 5/

Calif., by the American Civil Liberties Union

of Northern California.

Phone: EXbrook 2-3255

ERNEST BESIG ..Hditor

Entered as second-class matter, July 31, 1941, at the

Post Office at San Francisco, California,

under the Act of March 3, 1879

Subscription Rates-One Dollar a Year.

` Ten Cents per Copy

-151.

Congressional Committee

"Overrules' FCC on Atheism

_ A House committee under the chairmanship of

Rep. Forest A. Harness, last month charged the

Federal Communications Commission with "a

dangerous and unwarranted policy of thought

policing that has no basis in law," because it had

ruled that atheists have the right to be heard

on the radio. "If the Scott decision were applied

literally," the committee said, "it would have the

effect of either driving religious programs from

the air, or flooding the homes of listeners with a

barrage of unwelcome attacks on religion." The

Committee threatened to seek new legislation

unless the FCC excluded atheists from the air.

"I imagine," said John Crosby, a newspaper

radio editor, "only in an election year could a

Congressional committee put itself on record as

in favor of denying the right of opinion and, at

the same time, rigorously opposed to thought

control-all in the same breath."

Another portion of the Committee's report de-

clared the Scott decision "obviously would be

advantageous only to the atheists and the Com-

munists. For any method or means that blocks

the words of God, the enemy of these groups, is

a victory for their cause of Godlessness." On the

other hand, the Zion Herald, a Methodist weekly,

commenting on the Scott decision, declared, "`The

church must recognize and defend the right of an

individual to disbelieve either in part or com-

pletely."

All the Scott decision said was that a station

does not have the right to refuse a man time be-

"cause his views happen to be unpopular. That

goes for atheism, Communism, or any other sub-

ject. On any controversial issue, if one side is

heard, then the other side is entitled to be heard,

although "Controversial issues of public impor-

tance may not extend to all possible differences of

opinion within the ambit of human contemplation."

SENATOR ALBERT J. BEVERIDGE: No

practice of government has been followed so often

and with such uniform results as the practice of

attempting to stamp out by force the exvression

of ideas and doctrines condemned by official au-,

thority or by temporary majorities. In eve"rv case.

under every form of government, at all times and

in all places, such repression has, in the end, in-

creased and strengthened the very evils against

which it was directed. In every country reform

movements have alwavs been increased in bulk

and momentum by efforts to suppress them:

while eruptive and destroying theories have heen

rendered comparatively harmless. by permitting

their advocates to exploit them. :

`Police Brutality Charaes

Bring Unwilling Investiaation

Charges of brutality against San Francisco

police have been whitewashed by the Police De-

partment, and, while complaints to the District

Attorney have brought promises of investigations,

there has been an apparent lack of enthusiasm to

do anything.

On August 16, at about 8:30 p.m.. one Arthur

Chiarle drove to downtown San Francisco to tell

a friend of his where he could secure a iob. Leav-

ing him for a moment. Chiarle came hack to dis-

cover that his friend had`been arrested and placed

in a patrol wagon which was down the street. He

caught up with the wagon and continued to tell

his friend about the job. "If you're going to talk

to him, get in there." said the officer. Thev were

both taken to the Southern Station and released

the following morning without being taken be-

fore a magistrate.

During the night, Chiarle saw Charles C. Fox

and Ernest Clark being given severe beatines bv

police officers. The latter in particular was so

badly beaten that other prisoners begged the

police to desist.

He also saw Victor Vega have his pockets rifled

of money by a police officer. A police officer also

took the $16 that was in Cox' billfold. In place of

it, he received a ticket to a charity baseball game.

(Glendora C. O. 'Striker'

Barred From State Jobs

The California State Personnel Board on Sep-

tember 24 sustained the decision of its Execu-

tive Officer in refusing to certify the name of

Calvin A. Kirby to the eligible lists for the po-

sitions of Junior Chemical Testing Engineer and

Junior Chemist, because of Kirby's connection

with the Glendora Conscientious Objectors Camp

strike. Prof. Benjamin E. Mallary of Oakland .

cast the lone dissenting vote. The Board indi-

cated, however, that it would be willing to re-

consider the matter if the criminal conviction,

which resulted from Kirby's participation in the

strike, were reversed on appeal.

The strike arose not only as a protest against

the transfer of two men to the Minersville "Pun-

ishment Camp," but particularly as a protest

against made work, army control (instead of

"civilian direction"), compulsory work with no

pay or disability allowances, ete. The Govern-

ment pressed charges against 20 strikers, who

were charged with (1) failure to perform as-

signed duties; and (2) failure to report for roll-

call. They were convicted by Federal Judge

ee C. Cavanah of Los Angeles in March,

1947. ad

Judge Cavanah sentenced the strikers to ten

months in jail on the first count and one month

in jail on the second count, the sentences to run

concurrently. Execution of the sentences was

suspended, and the defendants were all placed

on probation for two years. An appeal was taken

to the Ninth Circuit Court of Appeals and the

opening brief was filed last August 14th. The

appeal is being handled by the Southern Cali-

fornia branch of the Union.

At the hearing, the Executive Officer con-

tended that Kirby lacked the minimum qualifi-

cations for the' jobs because he showed poor

judgment; that he had been guilty of infamous

or notoriously disgraceful conduct, and that he

was ineligible because he had been convicted of

an offense involving moral turpitude.

Of course, there was nothing innately bad in

what Kirby did. His acts were unlawful: merely

because they were prohibited. The C.O. camp

system was a miserable failure, and the lack of

judgment was on the part of the Government

which established the camps, not on the part of

the victims of the system. It is interesting to

note that Congress finally recognized the failure

of the system and provided for absolute exemp-

tions for conscientious objectors in the present

peace-time draft law.

Robert D. Gray, President of the Personnel

Board, stated that the reason Kirby was ineli-

gible for State jobs, as far as he was concerned,

was because he had not behaved himself at Glen-

dora. Kirby showed poor judgment, in Mr.

Gray's opinion, in challenging the Government's

cegaduct of the camp.

La

rlealth Certificate Fails to

Secure Entry to Sutro Baths

The ACLU is investigating a complaint that

Sutro Baths in San Francisco discriminates

against racial minorities. According to the com-

plaint, a Nisei girl sought admission to the

swimming pool, but was informed she would have

to present a health certificate. To the manage-

ment's surprise, she did so. Nevertheless, she

was denied admission, and the management re-

fused to return the health certificate to her.

Under the California Civil Rights Act, places

of public accommodation and amusement must

serve all persons, irrespective of color or race.

Anyone discriminated against may recover at

least $100 in damages.

MEMBERSHIP APPLICATION

American Civil Liberties Union of No. Calf...

461 Market Street,

San Francisco 5, Calif.

1. Please enroll me as a member at dues of

Dieses: for the current year. (Types of mem-

bership: Associate Member, $3; Annual Mem-

ber, $5; Business and Professional Member,

$10; Family Membership, $25; Contributing

Member, $50; Patron, $100 and over. Mem-

bership includes subscription to the "American

Civil Liberties Union-News" at $1 a year.)

2. I pledge So per month... Or $325 per yr.

3. Please enter my subscription to the NEWS, $1

per year) _ Bae ne os

Enclosed please find $......................: .. Please bill

M@.

Name

Street

City and Zone

Occupation 220

Asemi-Official Censors

Established in Santa Clara Co.

The San Jose Chief of Police and the District

Attorney of Santa Clara county have organized

a Citizens Committee on Publications "as a Board

of Review to examine and list those publications

which they consider lewd and obscene. . . . Only

those publications which seem to the Chief of ~

Police to be unfit to be placed on sale will be

referred to the committee for their consideration." _

"The committee believes,' according to its

Statement, of Policy, "that if a magazine will

tend to incite and disrupt the morals of our youth

by either glorifying sadistic and criminal traits

or presenting sex in a suggestive and obscene

manner, so as to give a distorted view to normal

adolescents, such a magazine should be disap-

proved by the committee."

Once a publication reaches the Committee's -

disapproved list, it apparently is confident it can

"convince" the distributors to withdraw the pub-

lication from sale rather than face prosecution.

Thus, the Committee becomes the censor of "`pub-

lications" in Santa Clara county.

If any person believes a publication is obscene,

the proper procedure is for a complaint to be filed

and a warrant of arrest to issue. It is the function

of a trial jury to determine whether there is a

violation of the law. No semi-official body should

arrogate to itself the functions of such a jury

which hears the evidence on both sides and more

or less reflects the community attitudes.

Union Joins International

Leaque for Rights of Man

Last month the ACLU accepted an invitation

to become a member of the International League

for the Rights of Man, in a letter signed by the

chairman of the Board, Dr. John Haynes Holmes.

The League, which was formed in New York in

1941, is an outgrowth of an agency formed

many years before in Paris to coordinate the

activities of the various Leagues for the Rights

of Man in European and other countries. It is

now recognized by the United Nations as the

special consultative agency in its field.

The League's platform comprises those guar-

antees of political freedom, racial equality and -

civil rights contained in the fundamental law of

progressive democracies. It applies those guar-

antees not only to the internal affairs of one

nation but to the relations between nations, and

especially to the growing field of obligations

undertaken by the U.N.

STATEMENT OF THE OWNERSHIP, MANAGEMENT,

CIRCULATION, ETC., REQUIRED BY THE ACTS OF

CONGRESS OF AUGUST 24, 1912, AND

MARCH 3, 1933 AND JULY 2, 1946

Of American Civil Liberties Union - News

monthly at San Francisco. California, for October, 1948.

City and County of San Francisco)

State of California i oss.

Before me, a Notary Public in and for the State and city and

county aforesaid, personally appeared Ernest Besig, who, having

been duly sworn according to law, deposes and says that he is

the Editor of the American Civil Liberties Union-News, and that

the following is. to the hest of his knowledge and belief, a

true statement of the ownership, management (and if a daily,

weekly, semiweekly or triweekly newspaper the circulation), etc.,

of the aforesaid publication for the date shown in the above

caption, required by the Act of August 24. 1912, as amended by

the Acts of March 8, 1933, and July 2, 1946, (section 537, Postal :

Laws and Regulations), printed on the reverse of this form,

to-wit:

1. That the names and addresses of the publisher, edi-

tor, managing editor, and business managers are:

Publisher-American Civil Liberties Union of Northern Cal-

fornia, 461 Market St., San Francisco 5.

Eiditor-Ernest Besig, 461 Market St., San Francisco 5.

Managing Editor-None.

Business Manager-None.

published

2. That the owner is: (If owned by a corporation, its

name and address must be stated and also immediately there-

under the names and addresses of stockholders owning or

holding one per cent or more of total amount of stock. If

not owned by a corporation, the names and addresses of the

individual owners must be given. If owned by a firm. com-

pany, or other unincorporated concern, its name and address,

as well as those.of each individual memher, must be given.)

American Civil Liberties Union of Northern California, 461

Market St., San Francisco 5.

Rt.. Rev. Edward L. Parsons, Chairman, 461 Market St.. San

Francisco 5,

Ernest Besig, Director, 461-Market St., San Francisco 5.

8. That the known bondholders, mortgagees, and other

security holders owning or holding 1 per cent or more of

total amount of bonds, mortgages, or other securities are:

(If there are none, so state.) None.

4. That the two paragraphs next above. giving the

names of the owners, stockholders, and security holders, if

any. contain not only the list of stockholders and security

holders as they appear upon the books of the company but

also, in cases where the stockholders or security holder ap-

pears upon the books of the company as trustees or in any

other fiduciary relation, the name of the person or corpora-

tion for whom such trustee is acting. is given; also that the

said two paragraphs contain statements embracing affiant's

full knowledge and belief as to the circumstances and con-

ditions under which stockholders and security holders who

do not appear upon the books of the company as trustees,

hold stock and securities in a capacity other than that of a

bona fide owner and this affiant has no reason to believe

that any other person, association. or corporation has any

interest direct or indirect in the said stock, bonds, or other

securities than as so stated by him. .

5. That the average number of copies of each issue of

this. publication sold or distributed, through the mails or

otherwise, to paid subscribers during the twelve months pre-

ceding the date shown ahove is :

(This information is required from daily, weekly, semiweekly

and triweekly newspapers only.)

ERNEST BESIG, Editor.

Sworn to and subscribed before me- this 27th day of Sep-

48.

pepaer, det JANE M. DAUGHERTY,

(Seal)

Notary Public in and for the Co, of San

Francisco, State of California.

(My Commission expires Sept. 24, 1949.)